Op-Ed: A First Amendment Victory for Texas Citizens

Monday

Jun 3, 2013 at 11:14 AM

By Donnis BaggettTexas Press Association

When the dust settles from another hard-fought legislative session, the people of Texas will have a clearer picture of current events in the Lone Star State, thanks to the hard work and determination of two Texas statesmen — one Republican, one Democrat.

Rep. Todd Hunter, R-Corpus Christi, and Sen. Rodney Ellis, D-Houston, scored major transparency victories in the 83rd Legislature. Three of those victories will be particularly helpful in strengthening and clarifying the public’s right to complete and accurate information.

One crucial bill that Ellis and Hunter shepherded through the legislative dust storm strengthens a crucial First Amendment law they passed two years ago. That law took aim at legal actions known as Strategic Lawsuits Against Public Participation (SLAPP) — suits filed against whistleblowers by individuals or entities who have plenty of money to pay lawyers.

SLAPP suits are designed to intimidate and stifle those who dare to exercise their First Amendment rights. Thanks to the 2011 law, however, it was finally possible for a David Q. Citizen with meager resources to defend himself against a SLAPP suit filed by a deep-pocketed Goliath.

Unfortunately, an appeals court ruled that the 2011 law did not include certain appeal rights for David. If a judge ruled against David’s motion to dismiss Goliath’s suit early in the process, David could very quickly find himself bankrupted by the expensive discovery process following that denial.

The legal tweak pushed through the 2013 session by Hunter and Ellis makes it crystal clear that David does, indeed, have a right to appeal, thereby stopping the discovery process until the motion is heard on appeal. It is a major victory for those who believe the quality of justice shouldn’t be determined by the depth of one’s pocketbook.

Another measure championed by Ellis and Hunter makes it clear that a government official’s use of his private electronic device for messages regarding public business does not allow him to hide those messages from public scrutiny. In recent years, a number of local officials across Texas have maintained that their government-related messages are no business of the public so long as the official uses his private device to send or receive them. Texas attorneys general have consistently ruled against that strained and arrogant line of reasoning, but officials continue to try to evade Texas’ open records laws anyway.

Once signed by the governor, the law will establish in black and white that citizens do indeed have the right to access these electronic messages about the public’s business. There should be no doubt going forward that if a public official is discussing public business in cyberspace, those messages are, yes, public — regardless of whether they’re transmitted on the official’s government computer or his personal e-tablet.

The third bill enhances public discourse by establishing clear and fair rules for prompt corrections by publishers. Until now, there was no established legal framework for a citizen to request a correction, nor were there guidelines for publishers to follow in addressing that request. The new law establishes clear processes and deadlines, which will result in the record being corrected quickly and fully when a mistake is made.

None of these important legal advances would have happened without the hard work and legislative prowess of Hunter and Ellis. For decades the two veteran lawmakers have fought hard — often against daunting opposition — to expand and protect citizens’ access to government information and journalists’ right to cover the complex issues that affect our daily lives.

The 83rd Legislative Session of the Texas Legislature saw these two veteran legislators from different parties — men who do not consider the First Amendment a partisan issue — at the top of their game. And because they were at the top of their game, the citizens of Texas can see more clearly now.

About the author:

Donnis Baggett is executive vice president of the Texas Press Association. His email address is dbaggett@texaspress.com.

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